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So this is kind of one of those videos where, kind of more of an opinion piece, just generally me almost kind of thinking out loud. The reason for the article, I was reading a recent article from The Washington Post, that's washingtonpost.com, the article is titled: Appeals Court upholds Texas law regulating social media moderation. Now I would argue this may be probably the seminal opinion, however it goes, regarding Free Speech in the United States probably for the first quarter of this century. I think when they ultimately make this decision one way or the other and I think ultimately the Supreme Court is probably going to have to hear this, although it's not a foregone conclusion, it never is. They can sort of deny cert and say that we are not going to hear it but I think they probably will because there is a lot to unwrap here. So let me get into this article. I am going to quote a fair bit of this but I urge those who are really interested in this, go read it all because there is a lot going on here.

Quoting: "The US Court of Appeals for the 5th Circuit on Friday upheld a controversial Texas social media law that bars companies from removing posts based on a person's political ideology, overturning a lower Court's decision to block the law and likely setting up a Supreme Court showdown over the future of online speech." Quoting further: "The decision diverges from precedent and recent rulings from the 11th Circuit and lower courts and tech industry groups are likely to appeal." So just as an aside, just something to think about. This is very important when they say it "diverges from precedent and recent rulings from the 11th Circuit". When you get two different Circuit Courts of Appeal, for those who are unaware, folks that are not from the United States if you are interested, there are what are called Circuit Courts of Appeal which are over and above the District Courts in the Federal System so they will oftentimes cover a grouping of states, usually like a half dozen although depending on population sizes it does kind of vary, yeah you will usually see these, there will be a grouping of states that one Circuit covers. You can end up with situations, there was a situation involving widows associated with US Immigration benefits years back that was one of these where for a long while, because the Supreme didn't get around to it, there were two differing Circuit Court opinions. So in two different parts of the United States in that immigration case, you could have sort of a different scenario operating with respect to the practical implications of the law because these two different Circuits had two different opinions on the same issue basically. That's important here I think from the standpoint of it going to the Supreme Court because the Supreme Court generally likes to go ahead and hear cases where the Circuit Courts are in conflict because they kind of want to smooth it out usually. It's not always the case. Sometimes those things will remain a while. In the case of the widow issues with Immigration, it did remain for quite a while as I recall, a number of years but in Court time that is really not all that long. Quoting further: "In the opinion, Oldham wrote" Oldham being one of the Judges that was in the Circuit that made the Circuit Court opinion, "Oldham wrote that while the First Amendment guarantees every person's right to free speech, it doesn't guarantee corporations the right to "muzzle speech." This is really the crux of this. It is interesting, this is me talking, it is interesting this whole case, this whole issue because in most cases where you deal with free speech, you are seeing one side saying "hey this public interest is more important than Free Speech." Obscenity Law is a good example where they say "oh it's antithetical or it's in opposition to the good morals of the community, the contemporary community standards." They are saying basically we want to block certain amounts of speech because we feel like there is a public health and safety issue at play essentially, that's what they are saying. In this case it is not what is really happening. It's very interesting because both sides are arguing the First Amendment; they are just arguing it from a different perspective and I'll get into this a little bit more. But again in this particular case, in this Appeals Court ruling from the 5th Circuit, the Judge writing the opinion wrote, I am going to quote this again: "While the First Amendment guarantees every person's right to free speech, it doesn't guarantee corporations the right to "muzzle speech". Quoting further: "The Texas Law, he wrote "does not chill speech; if anything, it chills censorship." And that is another kind of backwards way that this is kind of operating. Texas passed a law that banned certain social media providers from "muzzling speech" or from barring, it bars companies from removing posts, so it's barring companies from taking things down. It is saying you can't pull that down, it's not saying you have to say it, it is saying you are not allowed to remove it, basically. It's interesting. This is where you are really seeing modernity hit the Law in real time. The Law always looks backwards, the law always moves slowly and this is something I mean as a practical matter, we probably should have dealt with this years ago but this is just the way it is. It goes slowly. Quoting further: "An appeal of the decision would force the Supreme Court, where conservatives have a majority, to weigh in on the internet regulation, which has become an increasingly politicized issue since the 2016 election. "If the Supreme Court doesn't weigh in, it's going to be increasingly difficult to operate a nationwide social media company because it could be navigating state rules that differ or even conflict," said Jeff Kosseff a Cybersecurity Law Professor at the United States Naval Academy." Yeah good point there. As I said earlier, you get into these situations where one Circuit is saying one thing and another is saying another and then you have got a bunch of states running around that have promulgated their own legislation which may differ in minutia from one jurisdiction to the other. So interesting stuff going on here. 

Quoting further: "Earlier this year, the Supreme Court stopped the Texas Law from taking effect in a 5-4 decision responding to an emergency request from the tech industry trade groups." Yeah, that will happen from time to time where there is something that is big or the Court thinks it's a big enough issue that they will say "yeah we are just going to put a, injunction on that until we make a final decision". Now, interestingly, you could argue that allowing that injunction may have stifled speech in the meantime, hard to say. Reasonable people may be able to disagree. Yeah I think it's very odd, to say the least but even perhaps my more correct word might be concerning that there is a group out there that is not only trying but very much advocating the removal of content online, just blanket ability to remove content online. Now I'm not saying that there is not content, especially like truly obscene content, things like child pornography, things of this nature that absolutely must be not just regulated but removed, it shouldn't be out there but that's a pretty high threshold. I mean we are talking essentially this law has to do with whether or not people’s stuff can be removed from social media platforms just because of their political leanings and that is a very different issue.

Again political speech, a very different animal than even commercial speech or just even sort of almost what I call social speech where you are just kind of talking off the cuff. Political speech is considered highly protected by virtually every Supreme Court that has ever interpreted the US Constitution. Quoting further: "However the Judges did not explain the reasoning for their decision, which is common in such requests." Yeah, if anything the Judge’s decision to essentially issue sort of a preemptive injunction would lead me to believe this is very likely to hit the Supreme Court's desk and they are very likely to adjudicate it. How they adjudicate it remains to be seen but they are clearly aware of it. They have issued an emergency ruling, I just don't see where they would do that in order to create a situation where really there is quite a bit of legal uncertainty out there. Quoting further: "In their ruling, the 5th Circuit Judges agreed with Texas that social media companies are," and this is interesting, "common carriers" like phone companies that are subject to Government regulations because they provide essential services." Now again, we are walking some fine lines here because the issue is, is your website your own property, in the same sense that like your personal domicile. People don't have a right to freedom of speech in someone's private home. They can't run a protest through your house just because they want to. It's considered private property. The US Constitutional guarantees on freedom of speech don't necessarily apply. But again here where these companies, and I think it's a good analogy, are looking a lot like phone companies used to look in like the '80s and '90s where it is sort of "yeah, you are a private company but you are also essentially a public utility. People need to use the internet in the modern era much the same way they needed to use the phone lines in 1990. It's just something that is a matter of course that you need to use that "utility". Quoting further: "Conservatives have long made this argument, which has resonated with at least one Supreme Court Justice, Clarence Thomas, who has written that there are parallels between social media companies and phone companies." As I said, I kind of see the logic there. Quoting further: "Tech industry groups and legal experts warn that the 5th Circuit’s decision runs counter to First Amendment precedent and warned it could result in harmful posts staying on social media." Again, this is one of those where I understand the counter argument. A lot going on here. It is kind of dueling rights if you will because the tech companies are saying "hey, it's our property, we created it; it's ours. If you want to be on it you need to follow our rules." At the same time, it is starting to look more and more at least in my opinion that these things are looking a lot like common carriers, less like just "oh it's Ben's private, it's Benbook and there's 18 people on Benbook as opposed to Facebook because nobody wants to be on Benbook.” Well on that one that is not a common carrier. So I can see the argument where okay that's my private property. If I want to block what people say or whatever on this carrier, or on my platform that's what I am going to do. I understand the argument on that but this is evolving rather rapidly.

Just quoting further because there is something to be said for the counter argument here. I don't know quite where I am at on this yet. What I do know, what I really like is Free Speech, that is what I really like but trying to figure out the ins and outs of this in practice can be can be a bit daunting. Quote: "Little could be more Orwellian than the Government purporting to protect speech by dictating what businesses must say," said Matt Schruers, President of Computer and Communication Industry Association "The Texas law compels private enterprises to distribute dangerous content ranging from foreign propaganda to terrorist incitement and places Americans at risk." Well I think you got a little hyperbolic there at the end. Okay, some of that stuff might be subject to removal depending on the circumstances but again this 5th Circuit Court ruling seems to be based on the notion of removing posts merely based on that person's perceived or real ideology. It's not necessarily these higher level things of foreign propaganda or whatever. Look I can understand that they bleed together, it's not always a cut and dried issue but this is really interesting. I am going to try to keep up with what goes on with respect to this case. I am really hoping the Supreme Court weighs in and kind of gives us a good, I hope they give us a really solid framework for dealing with this in the future because I really have to say especially the past couple years I found the chilling effects of speech online in multiple different fora to be really concerning. I have seen people be blocked for saying things in my opinion were pretty innocuous. They weren't saying anything in the context; the Espionage Act in the United States constituted a quote "clear and present danger" to the National Security of the United States which can be cited as one reason to perhaps restrict certain types of speech under certain circumstances; there is case law on that from the past. I didn't see a lot of that. What I saw was a lot of “I don't agree with that opinion and I'm going to take that down” that seemed to me what I was seeing. So again you know I don't know how this is going to play out. It is rather interesting because it really is Free Speech being not redefined but just reinterpreted in the modern context because this isn't a situation where somebody is saying hey I have free speech and somebody else is saying hey there is a policy interest here.  I have free speech and somebody else says so do I; what do we do with both of those parties?